JUDGMENT : N. Kotiswar Singh, J. Heard Mr. A. Paul, learned counsel for the appellant. Also heard Mr. N.J. Khataniar, learned Standing Counsel, Education (Secondary) Department. 2. Being aggrieved by the order passed by the learned Single Judge on 10.12.2015 in WP(C) No.752/2012, the present appeal has been preferred. 3. The case of the appellant (writ petitioner) is that he was initially appointed as a Subject Teacher of Business Organization and Commercial Practice (B.O.C.P.) in Rangia Higher Secondary School as per order dated 05.08.1989 issued by the Principal of the said School which was made on the proposal of the Public General Meeting held on 10.07.1989 and instructions given by the Managing Committee of the School and accordingly, the petitioner after being appointed in the said capacity, joined the school on 10.08.1989. 4. It is the case of the petitioner that the Director of Secondary Education issued an order on 14.03.1996 wherein three different categories of posts were created in the Rangia Higher Secondary School, which were, (i) Subject Teacher, B.O.C.P., (ii) Subject Teacher, B.N.K. and (iii) Subject Teacher, B.K.A. for introducing additional stream in the school and accordingly, as per the order of the Director of Secondary Education, Assam vide order dated 27.03.1996, the petitioner was allotted the post of Subject Teacher of B.O.C.P. Subsequently, on 13.11.2003, the Joint Director of Secondary Education, Assam, wrote a letter to the Inspector of Schools to the following effect. “In inviting a reference to the subject cited above, I am directed to state that in the upgraded H.S. School in 1996, the subject teachers who were appointed by the Managing Committee of the school after due approval of the Govt. along with the upgradation order, their appointments have been treated as regularly made. As such no more regularization order is required in respect of these subjects teachers. Please inform the all concerned.” 5. It is the plea of the petitioner that because of this letter dated 13.11.2003 issued by the Joint Director, Secondary education, Assam, the petitioner’s service prior to the date of allotment of the post of Subject Teacher vide order dated 26.03.1996 has to be counted for the purpose of seniority and also for other benefits. 6. It is the plea of the petitioner that because of this letter dated 13.11.2003 issued by the Joint Director, Secondary education, Assam, the petitioner’s service prior to the date of allotment of the post of Subject Teacher vide order dated 26.03.1996 has to be counted for the purpose of seniority and also for other benefits. 6. It has been submitted that as the petitioner had initially joined the School as the Subject Teacher of B.O.C.P. on 10.08.1989, the petitioner’s seniority should be counted with effect from 10.08.1989 and in this regard the petitioner had relied on the decision of the Hon’ble Supreme Court in Direct Recruit Class II Engineering Officers’ Association Vs. State of Maharashtra, (1990) 2 SCC 275 referring to the Point No.B of paragraph 47 of the said judgment. “B” If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted.” 7. As regards the aforesaid plea taken by the petitioner, the stand of the State Government was that the Commerce Stream in Rangia Higher Secondary School was provincialized only with effect from 14.03.1996 and thereafter, the petitioner/appellant was made to hold the post only on 26.03.1996 and as such, there is no question of counting the petitioner’ seniority as Subject Teacher, B.O.C.P. from 10.08.1989. It was also the stand of the State Government that B.O.C.P. subject having been recognized in the School by the State respondents only on 14.03.1996 and as such, the service rendered by the petitioner/appellant as the Subject Teacher of B.O.C.P. prior to 14.03.1996 could not be counted for the purpose of seniority. 8. Learned Single Judge after hearing the rival contentions of the parties, dismissed the writ petition, WP(C) No.752/2012 filed by the petitioner by making the following observations and conclusions. “8. I find that school had appointed the petitioner as Subject Teacher of B.O.C.P. in the year, 1989. The said post of B.O.C.P. was provincialised only w.e. f. 14.03.1996 and the petitioner was appointed to the said post on 26.03.1996. As such, the petitioner’s service as provincialised teacher for B.O.C.P. can be counted only from the date the petitioner was appointed to the said post and at best from the date the post was provincialised, which is 14.03.1996. The said post of B.O.C.P. was provincialised only w.e. f. 14.03.1996 and the petitioner was appointed to the said post on 26.03.1996. As such, the petitioner’s service as provincialised teacher for B.O.C.P. can be counted only from the date the petitioner was appointed to the said post and at best from the date the post was provincialised, which is 14.03.1996. The post of Subject Teacher, B.O.C.P. prior to 14.03.1996 cannot be counted by the petitioner for the purpose of seniority as it was not a post created or in existence as per existing Rules applicable in the provincialised school prior to 14.03.1996. 9. In that view of the matter, I hold that Direct Recruit Class II Engineering Officers’ Association (supra) is not applicable to the present case and the writ petition is accordingly dismissed.” 9. Thus from the above, it is evident that the learned Single Judge held that the Point No.(B) of Direct Recruit Class II Engineering Officers’ Association (supra) referred to above is not applicable to the petitioner/appellant. 10. We have heard the learned counsel for the parties and also perused the 11. We are of the view that the observations and findings by the learned materials on record. Single Judge appears to be in accordance with law. 12. Though the petitioner/appellant had relied on the Conclusion (B) of Direct Recruit Class II Engineering Officers’ Association (supra), this conclusion has been further explained by the Hon’ble Supreme Court in the subsequent decision in State of West Bengal and Ors. Vs. Aghore Nath Dey and Ors., (1993) 3 SCC 371 . The Hon’ble Supreme Court in Aghore Nath Dey (supra) after detail consideration of the decision rendered in Direct Recruit Class II Engineering Officers’ Association (supra) and other cases concluded as follows: “25. In our opinion the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, 'if the initial appointment is not made by following the procedure laid down by the rules' and the later expression 'till the regularisation of his service in accordance with the rules'. This is clear from the opening words of the conclusion (B), namely, 'if the initial appointment is not made by following the procedure laid down by the rules' and the later expression 'till the regularisation of his service in accordance with the rules'. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not-being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stop-gap arrangement and not according to rules. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stop-gap arrangement and not according to rules. It is, therefore, not correct to say, that the present cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A).” 13. Thus, from the above, it is clear that to get the benefit of service under conclusion (B) of the Direct Recruit Class II (supra), it is necessary that the initial appointment should have been made at least against an existing vacancy apart from requirement of such appointment, not limited to a fixed period of time or purpose by the appointment order itself and was made subject to deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularization, the appointee being eligible and qualified in every manner for a regular appointment on date of initial appointment in such cases. Thus, one of the conditions required is that there should be existing vacancy. 14. In the present case, it is clearly seen from the record that the post of Subject Teacher, B.O.C.P. was created on 14.03.1996 upon provincialisation of the said School, the post of petitioner/appellant holding was prior to provincialisation and post period to which the petitioner claiming benefits relates to the period prior to provincialisation and it well settled that even if there was a post in the said School prior to provincialisation of that post, in no way equated with the post after the provincialisation inasmuch as the character and nature of the post pre-provincialiation and post-provincialisation are of different nature. Regular post under rules contemplates will be those posts which would be existing only after provincialiation inasmuch as only after provincialiation that the post become regular Government post to which the person may be entitled to the benefits attached to the same. 15. Since no such Government post was available before 14.03.1996 as the said School was yet not provincialized, we are of the view that the conclusion (B) mentioned in the Direct Recruit Class II Engineering Officers Association (supra) also will not be applicable as had been already held by the learned single Judge. 16. 15. Since no such Government post was available before 14.03.1996 as the said School was yet not provincialized, we are of the view that the conclusion (B) mentioned in the Direct Recruit Class II Engineering Officers Association (supra) also will not be applicable as had been already held by the learned single Judge. 16. For the reasons discussed above, we do not find any merit in this appeal and accordingly, the same stands dismissed. 17. Learned counsel for the petitioner also submits that even if the seniority of the petitioner is not considered, other benefits can be given. 18. As far as other benefits also are concerned, it goes without saying that such benefits may not be with the post he was holding and if the post he was holding came into existence only on 14.03.1996, we are afraid we cannot give any such benefit also inasmuch as he is not entitled to any benefit attached to the post which was not in existence prior to 14.03.1996. 19. Accordingly, it goes without saying that if the petitioner has not given any benefit after 14.03.1996 when the post was created in the said provincialized school in the Commerce Stream, the petitioner shall be entitled to such benefits attached to the said post from the date of joining on 27.03.1996 and if the said benefits were not already accorded to the petitioner, may be accorded as expeditiously as possible preferably within a period of 2(two) months from the date of receipt of a certified copy of this order.